HomeMy WebLinkAbout2007/05/15 Item 12
CITY COUNCIL
AGENDA STATEMENT
~l/~ CITY OF
'd'~CHUlA VISTA
May 15, 2007 Item~
ITEM TITLE:
DISPOSITION
REGARDING
LIMITS
PLANNING AND BUILDING ~cToA14"Y>
INTERIM CITY MANAGER 'II ()V
OF INITIATIVE PETITION
ALLOWABLE BUILDING HEIGHT
SUBMITTED BY:
REVIEWED BY:
4/5THS VOTE: YES
NO X
BACKGROUND
On April 17, 2007 the City Council referred the Initiative Petition Regarding Allowable
Building Height Limits to staff for review and analysis, pursuant to Elections Code Section
9215. This report documents staff's analysis.
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed actlVlty for
compliance with the California Environmental Quality Act (CEQA) and has determined
that the activity is not a "Project" as defined under Section 15378(b)(3) of the State
CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA
Guidelines the activity is not subject to CEQA.
RECOMMENDATION
That the Council accept the report and select one of the following options, pursuant to
Elections Code Section 9215:
I, Direct staff to place the ordinance, as proposed by the proponents, without alteration,
on a Council Agenda for adoption within ten days; or
2. Direct staff to prepare a resolution for Council adoption, placing the ordinance on the
ballot at the next regular municipal election (June 3, 2008).
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BOARDS/COMMISSION RECOMMENDA nON
None.
DISCUSSION
Staffhas conducted an impartial review of the proposed initiative. Staff's comments are
grouped into three topic areas: (I) summary of the initiative proposal, (2) review of the
practical effects and questions raised by the initiative language, and, (3) review of the
initiative per the specific criteria contained in Elections Code Section 9212, including
issues raised by Councilmembers at the meeting of April 17,
Summary of the Proposed Initiative
The full text of the proposed initiative is attached (Attachment 1). The City Attorney's
summary of the chief purpose and points of the initiative (Attachment 2) indicates that it
provides two primary land use controls:
1. Except as permitted under the General Plan Update as approved on December 13,
2005, an amendment to the General Plan which would have the purpose or effect of
increasing the allowable building height within any area to exceed 84 feet, will not be
effective until approval by the majority of the registered voters in the City. Voter
approval would not be required for General Plan changes affecting the Bayfront
Planning areas as identified in the Land Use Element of the 1989 General Plan; and,
2. The General Plan would be amended to provide that no building that is a part of any
development of the frontage of Third Avenue between E and G Streets shall exceed
45 feet in height. The allowable height shall be calculated as an average height above
existing grade, and shall include garages and rooftop appurtenances.
The areas as defined for these two criteria are mapped in Attachment 3.
In addition, the initiative sets forth the process for voter consideration of General Plan
Amendments where the prescribed heights would be exceeded as well as the means and
timing of adding the foregoing provisions to the existing General Plan,
Practical Effects and Questions
If enacted, the initiative could only be amended by the voters in a city election. Thus,
staff in its review has attempted to broadly consider practical issues and effects of the
regulations on existing regulations, policies and processes. The following general
observations are offered:
o The first provision of the initiative proposal establishes an 84-foot height limitation
over most of the City ("Citywide Provision"). This provision controls only the height
of buildings, It does not restrict the number of dwelling units in residential buildings
or the square footage of commercial or industrial development other than as that may
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May 15,2007, Item 12-
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occur due to the height limitation, The proposed Citywide Provision would be more
restrictive than existing zoning for four zone classifications, The commercial zones
C-B and C-C have no height limits [See Table, Attachment 4]. Together, these two
zones apply to a total of 234 acres. A third zoning category, the I zone, comprises
299 acres, but occurs entirely within the Bayfront planning area, which is excepted
from the Citywide Provision. The fourth classification, PC, comprises 1,961 acres
underlying Otay Ranch and other eastern neighborhoods, However, as a practical
matter, heights greater than 84 feet are not usually at issue in the PC zone, since
specific regulations, adopted at the time of the approvals of Sectional Planning Area
plans, nearly universally limit heights in the PC zone to less than 84 feet.
o The Citywide Provision includes exceptions ("Excepted Areas") (Map, Attachment
3). These areas include three locations that were designated for highrise development
in the 2005 General Plan, They comprise two Transit Focus Areas in the Urban Core,
and the Eastern Urban Center in Otay Ranch. The fourth Excepted Area is the
Bayfront planning area as set forth in the 1989 General Plan, generally comprising all
lands west of 1-5 northward of the extension of Palomar Avenue, The Bayfront
planning area includes lands within the incorporated limits of the City, both those in
the jurisdiction of the City, and those owned by the Port District. Because heights in
excess of 84 feet are allowed without voter approval within the Excepted Areas, the
proposed initiative would not control heights or restrict development within the areas
that the General Plan envisions for the City's highest buildings and greatest intensity
of future development.
o In light of the Excepted Areas, the 234 acres where the Citywide Provision would be
more restrictive than existing zoning, and the absence of controls on other
development standards, the Citywide Provision would not significantly reduce
potential yields in residential dwelling units and commercial or industrial square
footage, though it would place a ceiling on development heights. The primary effect
of the Citywide Provision would be on the 234 acres of CoB and C-C commercial
zonmg,
o The Citywide Provision controls only height. It excepts high residential density areas
and would not be in conflict with existing residential zoning development criteria.
For these reasons it would not appear to be an impediment to meeting Housing
Element Goals. In its own words, the proposed initiative is not intended to impede
affordable housing. The proposed initiative would not appear to prevent housing
density bonuses related to development regulations, including height. Thus, it would
not appear to present an adverse effect to providing affordable housing.
o The second provision of the proposed initiative would limit development on parcels
fronting Third Avenue between E Street and G Street (the "Third Avenue
Provision''). This provision is in conflict with the development regulations of the V-3
Village subdistrict classification of the Urban Core Specific Plan (approved on first
reading), applied to seven parcels within the area covered by the Third Avenue
Provision. The V -3 classification provides for a maximum Floor Area Ratio (ratio of
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May 15,2007, Item \2-
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building floor area to lot size), a maximum coverage of the building over the lot, and
a maximum building heighL Maximum development as provided by the floor area
and lot coverage standards ofV-3 subdistrict regulations would result in, at minimum,
a five-story building. The Third Avenue Provision limiting height to 45 feet would
effectively limit the building to a maximum of four stories, or 80 percent of the floor
area that might otherwise be allowed by the V -3 classification. Practical effects will
reduce this yield further, so the Third Avenue Provision would result in a loss of more
than 20 percent of the development potential for the seven parcels. This magnitude
of reduction, along with the need to provide on-site parking and other practical
considerations, would be a substantial factor in the overall development project
feasibility for these seven parcels.
o The Third Avenue Provision would effect two projects subject to Exclusive
Negotiating Agreements with the Redevelopment Agency, since the projects
described by the agreements exceed the proposed height limitation. The potential
elimination of two Exclusive Negotiating Agreement development proposals could
result in a loss or delay of development investment and tax increment revenues.
o The proposed initiative would apparently remain permanently in the City's General
Plan unless the initiative is amended or repealed by the voters at a City election, even
though it is based on factors and locations set forth in General Plans adopted in 1989
and 2005. As such, it would apply to future comprehensive updates of the General
Plan and limit the City Council's normal legislative discretion to amend the General
Plan.
In addition to the foregoing observations, staff has generated questions that may have
procedural and legal implications that cannot be definitively addressed at this time:
o The proposed initiative provides that projects and plans proposing greater building
heights than set forth in the initiative, "will not be effective until approval by the
maiority of the registered voters in the City" (underline added). This appears to
require that project proposals or General Plan Amendments seeking voter approval
must achieve fifty percent plus one of the total registered voters of the City,
regardless of the voter turnout at the election. This is a much higher standard than the
normal standard of a maioritv of those voting.
o In regard to the limitation set forth for Third Avenue, the proposed initiative text says,
"For the purposes of this section, the allowable height shall be calculated as the
average above existing grade,..." The intent of this statement is unclear. What may
have been intended was that the grade be averaged to achieve the datum from which
height would be measured, as is common in many municipal zoning ordinances.
However, the proposed initiative actually states that it is the height that is to be
averaged. Thus, a building would conform if its overall average height did not
exceed 45 feeL By this method, development applicants may argue that lower
elements or vacant spaces on the site be averaged against the highest portions of the
building(s) to achieve actual maximum heights in excess of 45 feet.
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May 15,2007, Item \ 2-
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o The proposed initiative uses the phrase "building height of development." This
description would potentially apply to all forms of buildings, which the Municipal
Code does not distinguish from 'structures'. Thus, it would appear to restrict not only
residential and commercial buildings, but also other unique structures such as spires,
antennas, the auto park sign, stadiums, hospitals or sports lighting -- all of which
frequently exceed 84 feet in height -- in most areas of the City.
o The method of height calculation proposed for the Third A venue area is prescribed by
the proposed initiative and uses 'existing grade' as a reference. This method differs
from that described in the Municipal Code, which uses 'average contact ground level'
(Municipal Code Section 19.04.038). Because the Third Avenue parcels are
relatively flat, this is not particularly troublesome other than its inconsistency with
normal practice. But the measurement of height from 'existing grade' in other
circumstances could prove exceedingly difficult.
o The General Plan is, as defined by the Government Code, a policy document. The
regulation of development is a function of the City Municipal Code's Zoning Title.
The proposed initiative states that, "Any provision of City law inconsistent with the
amendment inserted by this initiative shall be unenforceable to the extent of the
inconsistency." Actions taken to amend the zoning code must generally be consistent
with the adopted General Plan, but the proposed initiative does not prescribe those
actions. Thus, literal implementation of the proposed initiative would not place the
proposed restrictions within the Municipal Code, but would apparently invalidate
certain provisions within the Code. This would at minimum jeopardize their ready
availability to project applicants and could commit the City to a project of zoning
amendments to assure their applicability as an enforceable development regulation.
o The proposed initiative indicates that, "Nothing in this initiative shall be construed to
interfere with rights to obtain density bonuses under affordable housing laws or limit
rights or entitlements under affordable housing laws." It is unclear as to whether the
height limitation is a development regulation that could be exceeded in return for the
construction of affordable housing pursuant to Government Code Section 62915,
which obligates such concessions.
Elections Code Section 9212 Review
The April 17, 2007 agenda report listed eight topic areas warranting review under
Elections Code Section 9212. Each item is set forth below and a response as to the effect
of the proposed initiative is given,
r Its fiscal impact
The Citywide Provision limitation may limit flexibility of design options for new
development or require development proposals to be submitted for approval by a majority
of registered voters. It is difficult to quantify the potential for fiscal impact from such
potential impediments, The Third A venue Provision would limit the development
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May 15,2007, Item \2-
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potential of seven properties by about twenty percent or more, due to an inability to
achieve the maximum building square footage as allowed by coverage and floor area
ratio, imposed by an average building height limitation of 45 feet The Third Avenue
provision may jeopardize two current Exclusive Negotiating Agreements that were
drafted in anticipation of building heights greater than the proposed limitation. This
increment of potential lost development capacity and current development proposals
could result in a reduction of tax increment revenues.
2, Its effect on the internal consistency of the city's general and specific plans, including
the housing element, the consistency between planning and zoning, and limitations on
city actions under section 65008 of the Government Code and Chapters 4,2 (commencing
with Section 65913) and 4,3 (commencing with Section 69515) of Division 1 of Title 7 of
the Government Code,
The intemaJ consistency of the Citywide Provision with the existing general plan,
adopted specific plans and zoning totals 234 acres outside the Excepted Areas, where
existing zones could allow for heights in excess of 84 feet. The Third Avenue Provision
is inconsistent with the V - 3 classification applied to seven parcels within the first reading
approval of the Urban Core Specific Plan. The defined measurement of height for the
initiative's Third Avenue Provision is in conflict with the definition used within the
Municipal Code. The measurement of height prescribed for Third Avenue differs from
that used elsewhere. Municipal Code amendments could be processed to address these
conflicts. The other Government Code sections cited in the paragraph above deal with
discrimination and design restrictions that would have the effect of limiting housing
opportunities. It would not appear that the proposed initiative presents an adverse effect
related to discrimination or housing opportunities.
3, Its effect on the use of land, the impact on the availability and location of housing, and
the ability of the city to meet its regional housing needs,
The proposed initiative would not appear to prevent the City from substantially achieving
its goals of housing production and diversity, since it limits only the height of buildings
and not the number of dwellings that can be built. The Citywide Provision does not
restrict heights in the Excepted Areas, and is in conflict with existing zoning mostly in
commercial districts. In its own words it is not intended to impede affordable housing.
The proposed initiative would not appear to prevent housing density bonuses related to
development regulations, including height Thus, it would not appear to present an
adverse affordable housing effect
4, Its impact on funding for infrastructure of all types, including, but not limited to,
transportation, schools, parks, and open space, The report may also discuss whether the
measure would be likely to result in increased infrastructure costs or savings, including
the costs of infrastructure maintenance, to current residents and businesses,
The proposed initiative would not appear to prevent the City from achieving its goals of
facilities financing. New development projects would still be obligated to provide for
infrastructure funding in accordance with established programs of the City and the school
districts, and through mitigation required as a result of environmental review. If projects
in redevelopment areaS are impeded by either the Citywide Provision or the Third
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May 15,2007, Item \2,
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A venue Provision, related tax increment funds that could be collected and used for
transportation and park deficiencies might not be realized.
5, Its impact on the community's ability to attract and retain business and employment
As discussed above, the Citywide Provision of the proposed initiative would not appear
to significantly reduce overall development capacity, and thereby would not prevent the
City from achieving its General Plan goals of job creation and balanced land use mix. In
certain instances, absent approval by a majority of registered voters, it could preclude
future project design features related to structures which may functionally need to be
designed in excess of 84 feet, such as university development, hospitals, signs, or
stadiums, which could have business and employment impacts.
6. Its impact on the uses oj vacant parcels oj land
Vacant parcels affected by the Citywide Provision exist largely in Otay Ranch. Vacant
Excepted Area parcels include the Eastern Urban Center and certain parcels within the
Bayfront planning area. It is possible that certain unique structures, which may in the
future be proposed within the remaining villages ofOtay Ranch, would be affected by the
Citywide Provision.
7. Its impact on agricultural lands, open space, traffic congestion, existing business
districts, and developed areas designated Jar revitalization.
The proposed initiative would, to a limited extent, reduce design options that might be
used to avoid development impacts on open space, Because the proposed initiative does
not significantly limit the intensity of development that could be achieved in either the
number of dwelling units or square footage of commercial or industrial development, it is
unlikely to have an effect on present or projected future traffic congestion. The Third
Avenue Provisions would limit the height of buildings in that area. To the extent that this
limitation removes design flexibility and impedes reuse and investment, it could have a
long-term adverse effect on that existing business district. Conversely, to the extent that
it would limit new development and retain existing businesses, it may be seen by some
business owners as an effective way to protect existing businesses and community
character. The loss of flexibility or requirement to seek approval by a majority of
registered voters may discourage redevelopment proposals. However, the intensity of
development and overall development capacity within redevelopment areas is not
substantially reduced by the Citywide Provision.
g Any other matters the legislative body requests to be in the report [In their April 17
discussion and action, the City Council raised the issues discussed below]
a. General Plan Consistency - Refer to the overview and analysis in Item #2
above.
b, Future Redevelopment - The proposed initiative would limit projects and
planning or zoning amendments that would be in conflict with the Citywide
Provision or the Third A venue Provision. The loss of flexibility or requirement to
seek approval of the majority of registered voters may discourage redevelopment
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May 15,2007, Item /2..
Page 8 of9
proposals, The Third Avenue Provision conflicts with two current Exclusive
Negotiating Agreements, However, the intensity of development and overall
development capacity within redevelopment areas is not substantially reduced by
the proposed initiative.
c, Financial cost of redevelopment of the Scripps Hospital-No redevelopment
proposal has been submitted for the Scripps Hospital site at this time. Staff is
aware of the need for hospitals to achieve compact, vertical design that may
require building heights in excess of that allowed by the Citywide Provision.
Such design would be prohibited without approval of the majority of registered
voters,
d Employment - The Citywide Provision would limit 234 acres that would
currently allow buildings in excess of 84 feet in height. The height limitation
would not significantly restrict the intensity of development on these parcels,
Development intensity in the Excepted Areas would be as currently envisioned by
the General Plan. On the basis of these facts, it does not appear that the proposed
initiative would prevent the City from substantially achieving the employment
goals and development projections contained in the General Plan,
e, Affordable Housing - No current residential zoning is affected by the Citywide
Provision. The proposed initiative does not restrict residential development
densities or capacities. The highest density areas of the City are within the
Excepted Areas. The proposed initiative indicates that it is not intended to
conflict with affordable housing provisions, and density bonus provisions of the
Government Code are expected to apply.
f Community Character - The proposed initiative places key character-driving
development locations within its Excepted Areas. There may be effects
associated with the Third Avenue Provision on the feasibility of new development
in that area, but the resultant effect on community character is unclear.
g Preventing inconsistent projects prior to the Municipal Election -- Nothing in
the proposed initiative would restrict development projects seeking approval and
commencing construction prior to the June 2008 election. An interim control
could be referred to staff by the Council as a separate matter. Projects with the
potential to exceed the limitations of the proposed initiative would require
discretionary review and notice, and would be subject to City Council action
either as a matter of course or through appeal.
h Bayfront Master Plan - As discussed above, the Bayfront Master Plan lies
within the Bayfront Planning Area, which is one of the Excepted Areas. Thus,
building in excess of the Citywide Provision limitation in that area would not be
subject to approval by the majority of registered voters.
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May 15,2007, Item 12-
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DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specific and, consequently, the 500-foot rule found in California Code of
Regulations Section I 8704,2(a)(l) is not applicable to this decision.
FISCAL IMP ACT
The cost to include the measure on the June 3, 2008 ballot is estimated at $35,000,
Future applicants, or the City, would be required to pursue a ballot proposition and face a
similar expense, should amendments to the General Plan for the purpose of exceeding the
height be proposed. Municipal Code amendments may be required to achieve
consistency with the proposed initiative, at a cost to the General Fund. The increment of
lost development capacity for parcels on Third Avenue could affect the feasibility of
projects on seven parcels and would be inconsistent with two current Exclusive
Negotiating Agreements, resulting in a potential loss of tax increment revenues, It is
difficult to quantify the potential for fiscal impact based on lost opportunities that might
result from the Citywide Provision.
ATTACHMENTS
1. Text of the Proposed Initiative
2, City Attorney's Summary
3. Maps of Areas of Applicability ofInitiative Provisions
4, Table of Height Limitations by Zone
Prepared by: Jim Hare, Assistant Planning Director, Planning and Building Department
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PETITION FOR SUBMlSSION TO VOTERS
PROTECTION OF GENERAL PLAN
THROUGH VOTER APPROVAL OF CERTAIN CHANGES AND DESIGNATION OF
HEIGHT LIMITS
Section 1. Purpose and Findinl!s - Protection of overlv intensive development and taller
buildinl!s
This ordinance is intended to protect Chula Vista residents from the traffic, visual,
community character and infrastructure impacts from overly intensive development and taller
buildings,
The intention is to protect the General Plan, in effect as of December 13, 2005, by requiring
voterapproval to increase allowable building heights above 84 feet in most areas of the city, and
to set a building height limit of 45 feet on Third Avenue between E and G Streets, A statement
of the reasons for the proposed action as contemplated in the petition is as follows:
The people of Chula Vista should have a voice in protecting the current General Plan against
changes that will increase traffic congestion, reduce available parking and cause visual impacts
from high rise developments in the wrong locations, The people of Chula Vista are also
concerned about the protection of the character of the Third Avenue Village area, where over-
development would also have visual, traffic and parking impacts,
The current General Plan recognizes that high-rise buildings have a place in Chula Vista, They
should be located where transportation systems have been built to serve them, and where existing
neighborhoods will not be disrupted, displaced or overburdened, Under this initiative, the Bay
Front Planning Area and other areas the current General Plan already designated as suitable for
high-rise development would not be affected, Under this initiative, the voters would have a
voice in protecting the current General Plan against changes that would adversely affect
residents' quality of life,
Section 2. Amendment of the General Plan
The Land Use Element of the General Plan is hereby amended to add two
provisions to read:
Approval of Changes to Height Limits, Except as permitted under the
Chula Vista General Plan Update as approved December 13, 2005, an
amendment to the General Plan approved by the City Council which has
the purpose or effect of increasing the allowable building height of
development within any area to exceed 84 feet, such amendment, whether
approved as a general plan change, specific plan, or by any similar action,
ATTACHMENT 1
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shall not take effect unless and until approved by a majority of the
registered voters in the City at an election held in accordance with this
ordinance,
No voter approval shall be required for any General Plan changes
affecting the Bayfront Planning Area, as identified in the Land Use
Element of the Chula Vista General Plan as amended and adopted in 1989,
Protection of Third Avenue Village Notwithstanding any other provision
of the Chula Vista General Plan, no building that is part of any
development, in the Third Avenue Village, which fronts on Third Avenue
between E Street and G Street shall exceed 45 feet in height, For the
purposes of this section, the allowable height shall be calculated as an
average above existing grade, and shall include garages and rooftop
appurtenances.
These items shall not apply to amendments which are necessary to comply
with state or federal law
Section 3. Imvlementation
A Upon the effective date of this initiative, the provisions of this initiative shall be
inserted into the General Plan as an amendment thereto, except that if the four amendments
permitted by State law for the calendar year in which it is approved have already been utilized
for that year prior to the effective date of this initiative, this General Plan amendment shall be the
first inserted into the General Plan on January I of the following year Any provisions of City
law inconsistent with the amendment inserted by this initiative shall be unenforceable to the
extent of the inconsistency.
R To ensure that the Chula Vista General Plan remains a meaningful and integrated
planning document, the General Plan provisions adopted by the initiative shall prevail over any
conflicting revisions to the General Plan adopted between the date of circulation and the date the
amendments included in this initiative measure are adopted by the voters.
C In the event that the City Council approves a change, amendment or other land use
decision which must, by the terms ofthis initiative, be approved by the voters of the City of
Chula Vista in order to become effective, the City Council shall set. the matter for public vote.
D. The City Council shall call any election required by this initiative for the next
available general municipal election or may, in its discretion, set a special election,
Section 4. Construction
Nothing in this initiative shall be construed to make illegal any lawful use presently being
made of any property. Nothing in this initiative shall be construed to require more than a simple
majority vote for the adoption of this initiative or for the approval of any future measure required
by this initiative, Nothing in this initiative shall be construed to interfere with rights to obtain
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density bonuses under affordable housing laws or limit rights or entitlements under affordable
housing laws.
Section 5. Severability
The provisions of this initiative measure shall not apply to the extent they violate
state or federal laws, If any word, sentence, paragraph, subparagraph, section or portion of this
initiative is declared to be invalid by a court, the remaining words, sentences, paragraphs,
subparagraphs, sections and portions are to remain valid and enforceable,
Section 6, Amendment or ReDeal
This initiative may be amended or repealed only by the voters at a City election,
Section 7. Effective Date
Pursuant to the State of California Municipal Electioos Code section 9217, if a
majority of the voters voting on a proposed ordinance vote in its favor, the ordinance shall
beco me a valid and binding ordinance of the city, The ordinance shall be considered as adopted
upon the date that the vote is declared by the legislative body and shall go into effect 10 days
after that date,
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Initiative Measure to Be Submitted Directly to the Voters
The City Attorney has prepared the following title and summary of the chief purpose and points
of the proposed measure:
Title: A Petition to Amend the General Plan by requiring voter approval to increase allowable
building heights above 84 feet in most areas of the City and to set a building height limit of 45
feet on Third A venue between E and G Streets.
Summary: This petition proposes to amend the Land Use Element of the General Plan in two
ways, First, except as permitted under the General Plan as approved on December 13, 2005, an
amendment to the General Plan which will have the purpose or effect of increasing the allowable
building height within any area to exceed 84 feet will not be effective until approved by a
majority of the registered voters in the City. This petition will not require voter approval for any
General Plan changes affecting the Bayfront Planning Area as identified in the Land Use
Element of the Chula Vista General Plan as amended and adopted in 1989.
Second, this petition proposes that no building that is part of any development in the Third
A venue Village, which fronts Third A venue between E Street and G Street shall exceed 45 feet
in height. This petition proposes that for the purposes of the section regarding Third Avenue, the
allowable height shall be calculated as an average above existing grade, and shall include
garages and rooftop appurtenances.
The petition proposes that in the event that the City Council approves a change, amendment or
other land use decision, which must, be the terms of this petition, be approved by the voters of
the City of Chula Vista in order to become effective, the City Council shall set the matter for
public vote, The petition provides that the Council shall call any election required by this
initiative for the next available general municipal election or may, in its discretion, set a special
election.
Upon the effective date of this initiative, the provisions of this initiative shall be inserted into the
General Plan as an amendment thereto, except that if the four amendments permitted by State
law for the calendar year in which it is approved have already been utilized for that year prior to
the effective date of this initiative, this General Plan amendment shall be the first inserted into
the General Plan on January 1 the following year, This initiative could only be amended or
repealed by the voters at a City election.
The above is a summary of the terms of the proposed petition prepared by the City Attorney as
required by Elections Code section 9203; it does not reflect any legal analysis or opinion of the
City Attorney concerning the proposed measure,
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Table of Height Limitations by Zone
City of Chnla Vista
ZONE CITE MAX. HT. LIMIT ATIONSI ADJUSTMENTS
AG 1920,060 35 Feet
RE 1922.060 28 Feet
R-1 19.24.060 28 Feet
R-2 19,26.060 28 Feet
R-3 (-M, -T, -G) 19.28,060 45 Feet With DRC Approval
R-3 (-H) 1928,060 46 Feet
C-O 19.30.060 45 Feet
CB 19.32.060 None 45' if adjacent to R o! C-O Zones
CN 19.34,050 35 Feet
CC 19.36.050 None 45' if adjacent to R o! C-O Zones
CV 19.38,050 45 Feet May be adjusted by CUP
CT 19.40,050 45 Feet May be adjusted by CUP
IR 19.42.040 45 Feet May be adjusted by CUP
19.42,070 35 Feet Within 200' of Residential
IL 19.44.040 45 Feet May be adjusted by CUP
19.44.070 45 Feet May be !educed if detrimental
I 19.46,060 None 50 Feet if within 200' of Residential
PC Ch, 19.48 None Height limits determined by PC
District Regulations through SPA
ATTACHMENT 4
12-16
05-15-2007 05:20pm From-THE SUTTON LAW FIR~
4157327701
T-433 P.001/009 F-267
J~O p(~C;r S!fe~{,Suitc 405 !I S!n frands..:rl, r.A l)41Ul:
Tcl: 41.5/i3~-"OO a Fitx: &Il51,32.7iOI iii 1'I'\;,w..:::!mp"ig:niaw)'eI~.CO!T!
FAX COVER SHEET
May 15, 2007
TO:
Honorable Cheryl Cox, 619/476-5379
Mayor - City of Chula Vista
cc: COUDcilmember Castaneda, 619/476-5319
Councilmember McCann, 619/476-5379
Councilmember Ramirez, 619/476-5379
Councilmember Rindone, 619/476-5379
City Attorney Ann Moore, 619/409-5823
City Clerk Susan Bigelow, 619/585-5774
FROM:
James Sutton, Esq.
Please See attached.
J 0 pages total
IRS/dim
#1015.01
Tt..US CORRESPONDENCE; 151 CONFIDENTIALAND MAY I3E Lli:GAu...y PRIVJLEGOJ. IFYOU HAV~R~ErVED ITIN .E:RROR,
YOU ARE ON HOTtel': TO NOT COPY [T, USE; rr FOR ANY PURPOSES, OR DISCLOSE r'tS CD~TS TO A.NY O'11iRR:
P~RSDH: TO co 50 COULD YIOLA.TE; 5TATE AIIIO F'EDE;RA1.., PRIVACY I...A'W~. IF YOU HAVE RECIlIVED ~I$
CORRESPONDENCE IN ERROR, PL..E;4SE; NOTIFY lJS IMME;D''''Tfa. Y AND T",1tN DELETE: OR t)ES'T'ROY IT.
TH....NK YOU FOR YOUR C:QOI"'1i:FV.TION.
05-15-2007 05:20pm From-THE SUTTON LAW FIRM
4157327701
T-433 P002/00i F-257
May 15, 2007
VIA FAX ONLY
The Honorable Cheryl Cox
Mayor
City of Chula Vista
276 Fourth Avenue
ChuIa Vista, CA 91910
RE: Height Umit Initiative
Dear Mayor Cox:
Our law firm represents opponents of the proposed initiative regarding permissible
building height limits in the City of Chula Vista. We are writing to urge the City Council to
reject the proposed initiative today as illegal because the proponents failed to comply with
statutory requirements under the California Elections Code to publish the "title and
summary" of initiative petitions in a newspaper of general circulation_ Because the initiative
failed to comply with these procedures, it violates state law and does not qualify for the June
3, 2008 ballot.
State law clearly requires proponents of local initiatives to publish the title and
summary of the measure prepared by the Chy Attomey in a "newspaper of general
circulation" before the petitions are circulated among voters for signatures. (Cal. Elec, Code
sections 9205 & 9207 [all further statutory references are to California Elections Code];
Ibarra v, City of Carson (1989) 214 Cal.App.3d 90.) It is undisputed that the title and
summary of the height limit initiative was only published in La Prensa. a local news
publication. As the enclosed memorandum from the City Attorney's office dated February
28, 2007 confirms, La Presna does not qualify as a "newspaper of general circulation" under
state law for purposes of this publication requirement. Accordingly, the requirements of
section 9205 have not been met for this proposed initiative, and the City Clerk erroneously
certified the proposed measure for the June 3 ballot.
A court case directly on point provides that a violation of these publication
requirements prevents a proposed initiative from qualifying for the ballot. In the Ibarra case,
the court determined that any signatures obtained on initiative petitions are void and illegal
150 Post Street, Suite 105 .
Tel: 415/732-7700 . Fax: 415/732-7701
San Francisco. CA 94108
. www_campaignlawyers.com
05-15-2007 05:20pm From-THE SUTTON LAW FIRM
4157327701
T-433 P.OOI/OOS F-267
I~.<. ':':. S. ,"i',';"."':.:'::'.' '.:;i ". ...;:.-~.
....~..:. q[fONLAW,FIRM .'.'
L5.. ..:.........c:.',.i;... ...:...,..'"
l~O p(.~r SIre,,!, Suitt' 4Q5 :!II SIUJ rrancis':[I, (r\ IJ41 UM
rc!:"15Ii3~-?70D ill Filx: 4 LSJ732.7iQI iii W\1w..:::!mp~ignlil"'r{'r..._(o/J!
FAX COVER SHEET
May 15, 2007
TO:
Honorable Cheryl Cox, 619/476-5379
Mayor - City of Chula Vista
cc: Councilmember Castaneda, 619/476-5379
Councilmember McCann, 619/476-5379
Councilmember Ramirez, 619/476-5379
Councilmember Rindone, 619/476-5379
City Attorney Ann Moore, 619/409-5823
City Clerk Susan Bigelow, 619/585-5774
FROM:
James Sutton, Esq.
Please see attached.
10 pages total
IRS/dfm
#1015.01
THJ5 CORRESPONDENCE ISCONFJDENTIALAHD MAY J!!IE &.EGAu..y PRrvILEIi~. lFYOU HAV~I{~EIVED ITIN .E;RROR,
YOU A~ ON HOTtCI!;: TO NOT COPY IT, USE; IT FOR ANY PURPOSES, OR DIScLOSE n-s CO~ TO ANY OnfRR
PERSoN: TO CO so COULD VIOLATE; STATE ~o FEDERAL, PRIVACY LAWS. IF YOU HAVE RECIIIVBCI '1"111$
eORRESPONPENCE IN E~ROR, P~E NOTIFY LIS IMMl;Df"T~Y AND Tt"IltN DELETE; OR DES'ntOY IT.
TM"NK YOU F'OR YOlJeI ~~S;RATION.
05-15-2007 05:20pm From-THE SUTTON LAW FIRM
4157327701
T-433 P002/00i F-267
May 15, 2007
VIA FAX ONLY
The Honorable Cheryl Cox
Mayor
City of Chula Vista
276 Fourth Avenue
Chula Vista, CA 91910
RE: Height Limit Initiative
Dear Mayor Cox:
Our law firm represents opponents of the proposed initiative regarding permissible
building height limits in the City of Chula Vista. We are writing to urge the City Council to
reject the proposed initiative today as illegal because the proponents failed to comply with
statutory requirements under the California Elections Code to publish the "title and
summary" of initiative petitions in a newspaper of general circulation. Because the initiative
failed to comply with these procedures, it violates state law and does not qualify for the June
3, 2008 ballot.
State law clearly requires proponents of local initiatives to publish the title and
summary of the measure prepared by the City Attorney in a "newspaper of general
circulation" before the petitions are circulated among voters for signatures. (Cal. Elec. Code
sections 9205 & 9207 [all further statutory references are to California Elections Code];
Ibarra v. City of Carson (1989) 214 Cal.App.3d 90.) It is undisputed that the title and
snmmary of the height limit initiative was only published in La Prensa, a local news
publication. As the enclosed memorandum from the City Attorney's office dated February
28, 2007 confirms, La Presna does not qualify as a "newspaper of general circulation" under
state law for purposes of this publication requirement. Accordingly, the requirements of
section 9205 have not been met for this proposed initiative, and the City Clerk erroneously
certified the proposed measure for the June 3 ballot.
A court case directly on point provides that a violation of these publication
requirements prevents a proposed initiative from qualifying for the ballot. In the Ibarra case,
the court determined that any signatures obtained on initiative petitions are void and illegal
150 Post Street, Suite 405 .
Tel: 415/732-7700 . Fax: 415/732-7701
San Francisco, CA 94108
. www.campaignJawyers.com
05-15-2007 05:20pm FrDm-THE SUTTON LAW FIRM
4157327701
T-433 P.003/009 F-267
Mayor Cheryl Cox
May 15, 2007
Page 2
unless the proponents have first complied with the publication requirements under section
9205. (Ibarra, 214 CaLApp.3d at 95-96.) Because La Premia does not qualify as a
newspaper of general circulation, the publication requirements for the height limit initiative
have not been met. As such, the City Clerk erroneously certified the signatures submitted by
the proponents in support of this initiative because they arc all illegal and void. The City
Clerk also erroneously certified to the City Council that the proposed initiative complied
with the procedural requirements of the California Elections Code. As courts have
explained, the City Clerk has a duty !JQ1 to certify documents submitted in support of a
proposed initiative unless they comply with the requirements under state law. (Myers v.
Patterson (1987) 196 Cal.App.3d 130, 136.)
Because the City Clerk erroneously and illegally certified the petitions submitted to
pJace this initiative on the June 3 ballot, we strongly urge the City Council to reject the
proposed measure today and protect the integrity of the initiative process. Please feel free to
contact us if you have any questions regarding this maner.
:5df-"i~
es R. Sutton
cc: City Councilmember Castaneda
City Councilmember McCann
City Councilmember Ramirez
City Councilmember Rindone
Ann Moore, City Attorney
Susan Bigelow, City Clerk
Enclosure
IRS/dfm
#1015.01
05-15-2007 05:21pm From-THE SUTTON LAW FIRM
4157327701
T-433 P.004/009 F-257
MEMORANDUM OF LA W
DATE; February 28,2007
TO: Councilmember Steve Castaneda
FROM: Sharon Marshall, Senior Assistant City Attorney
SUBJECT: Newspapers of Genc:ral Circulation
MEMORANDUM OF LAW
QUESTION PRESENTED
What newspapers in the City of Chula Vista currently meet the requirements to be a
newspaper of general circulation, such that they qualifY to publish all legal notices of the
City?
SHORT ANSWER
The basic rules for approval by the court as a newspaper of general circulation found in
Government Code section 6000 require that a newspaper provide local and telegraphic
news of general interest, have a bona fide subscription list of paying subscribers, and be
established, printed, and published at regular inTervals in the city where o!1icial
advenising is to be given or made for at least one year before seeking approval by the
coun as a newspaper of general circulation. Government Code section 6008 provides
alternative qualification requirements by eliminating the printing requirement, but
increasing the time requirement to three years. It also adds a requirement that the
newspaper have only one principal office of publication and that office is in the city in
which it is seeking adjudication.
BACKGROUND
Chula Vista City Charter section 313 mandaTes thar the City do an annual Request for
Proposals [RFPJ, inviting bids for the publication of alllegaJ notices the City is required
to publish. However, the Charter also provides that if there is only one "newspaper of
general circulation" as that term is defined in the Government Code, the RFP process
may be waived and the newspaper can be designated as the City's official newspaper. In
t 997, by Resolution Number] 8793, the City Council waived the RFP requirement and
05-15-2007 05:21pm From-THE SUTTON lAW FIRM
4157327701
T-433 P.005/009 F-267
Councilmember Steve Castaneda
February 28, 2007
Page 2
I
/
designated The Star News as the City's official newspaper for purposes of publishing the
City's legal notices. The Slar News has been the official City paper since that rime.
CurrentJy, only the Star News meets the requirements to be approved as a newspaper of
general circulation. However, should La Prensa, or any other newspaper, fulfilJ the
requirements of either Government Code section 6000 or 6008, the City would be
required to rescind the official newspaper designation for The Star News and rebid the
COntract on an annual basis as required by Charter section 313.
Subsequently, the editor of La. Prensa newspaper submined a letter to the City Manager
indicating that it, too, is a newspaper of general circulation for the City, and submitted a
copy of the coun order adjudicating it as a newspaper of general circulation for the
County of San Diego, the City of San Diego, and the San Diego Judicial District to
support his assenion that La. Prensa is a qualified newspaper for publishing official
notices for the City. La Prensa is not printed in the City ofCbula Vista and its principal
publication office is in National City. La Prensa asked that an RFP be issued so it might
bid on the contract for the publication of legal notices for the City.
All the requirements regarding official notices and publioations are ouJTently in the
California Government Code. Previously, however, the identical sections were found in
the California Political Code. For purposes of this Memorandum, unless specifically
noted, all references are to the Government Code.
ANAL YSIS
The statulory framework for the qualification of newspapers of genera] circulation is set
forth in Government Code sections 6000 through 6027. The basic requirements for court
approval or adjUdication are that the paper: (I) pubUsh local Or telegraphic news and
intel1igence of general character; (2) have a bona fide subscription list of paying
subscribers; and, (3) be eStablished, printed, and publiShed at regular intervals in the
state, city, or county where the official notices are to be published for at least one year
preceding the date of adjudication. Ca!. Gov't Code ~ 6000.
The courts have said:
(TJhe purpose of the statute is the quaUfication of
newspapers to which the general publio will reson in order
to be infotmed of the news and intel1igence of the day and
thereby to render it probable tbat notices and official
advertising published in the newspaper will be brought to
the attention of the general public.
05-15-2001 05:21pm From-THE SUTTON LAW FIRM
4151321101
T-433 P.006/009 F-261
Councj]member Steve Castaneda
February 28, 2007
Page 3
Lozano Enlerprise.J' v. Los Angeles Newspaper Services, 10 Cal. App. 3rd 1012, 1016
(1970).
Originally, Political Code section 4460 established the qualifications for newspapers of
general circulation and required newspapers be printed and published in the city seeking
adjudication. Early court decisions interpreted the meaning of the words "printed and
published" to mean that the paper be "produced in the community where it is aimed to
have it recognized as a legal advettising medium." In the Maller of D.D. McDonald,
187 Cal. 158, 161 (1921). The court said it "would be giving too narrow a meaning to the
word 'primed' [0 hold that these acts alone (setting up the type and making the
impressions on paper) were contemplated by its use in the statum." McDonald at 161.
However, in 1923, the Legislature added section 4463 to the Po lilical Code, providing
that ,... . . The word 'printed' as used in said section [4460] shall mean, and be construed
to mean, that the mechanical work of producing such a newspaper of general circulation,
that is to say, the work of typesetting and impressing type on paper, shaH have been
performed during the whole of the period as designated and required by said section. '"
Petirians a/Herald Publishing, 152 Cat. App. 2d 901, 905 (1957). "The court concluded
that by the enactment of section 4463 the Legislature expressly intended to overcome the
effect of the McDonald case. . . ." Herald Publishing at 906. Subsequent cases reinforced
the Herald COUrt'S conclusion that by adding section 4463 the legislature intended that
both the mechanical process of priming the paper and the publication of the paper must
occur in the city in which the newspaper seeks adjudication. Finally, cotms have said
that, "[A]lthough a newspaper printed and published in one city may not qualifY as a
newspaper of genentl circulation for another city, it does qualify as a newspaper of
general circulation for tbe county in which it is both 'printed' and 'published'." Western
States Newspapers Inc. v. Gehringer, 203 Cal. App. 2d 793, 797 (1962). Thus, based on
tlie language currently found in Govemmcnt Code section 6000, the printing and
publishing requirement is mandatory and may not be waived.
Two intervening factors need to be considered in reaching the determination of whether
or no! a newspaper meets the requirements to be approved by the court as a newspaper of
general circulation. The first factor was implemented in 1923, at the same time the
Legislature enacted the language specificaJIy defining 'jJrjnted." Politics] Code section
4465 (now Government Code section 6006) was added, which provided, "[N]othing in
this chapter alters the standing of any newspaper which, prior to the passage of Chapter
258 of tbe Statutes of 1923, was an established newspaper of general circulation,
irrespective of whether it was printed in the place where it was published for a period of
one year as required." Thus, any newspaper detennined to be a newspaper of general
circulation prior to 1923 maintained its status. This exemption has been challenged as
being unconstitutional because the exemption allegedly arbitrarily discriminates against
newspapers established after 1923. In rejecting the constillltional challenge. (he court,
05-15-2007 05:21pm From-THE SUTTON LAW FIRM
4157327701
T-433 P.007/00S H67
CounciJmember Steve Castaneda
February 28, 2007
Page 4
citing a previous Supreme Court case addressing the same issue, said it is not
"'unreasonable to exact certain requirements of a newspaper to be established in the
future which are not required of those long established and which have proved their right
to exist by full compliance with all the laws in force at the time of their establishment,'"
Whitehead Donovan Corp, v. Herald Publishing Company, 62 Cal. 2d 185, 187 (1964),
citing In re Byers, 219 Cal. 446, 450 (1933).
In 1951, a caveat was added that limited the exemption provided by section 6006 to those
newspapers that had not altered their city of prif1ting or publication since tbe effective
date of the Act in 1923. This caveat was subsequently repealed in 1961, and the original
language preserving a pre-1923 newspaper's status was reinstated without limitation.
The Slar New:; was established as a newspaper in ] 919 (see attachment) and was printed
ilJ1d published in the City of Chula Vista at that time. It thus faHs within the exemption
provided by section 6006 and need not meet the printed and published requirement found
in section 6000. It also meelS the remaining requirements of having a bona fide
subscription list and has been established for more than the requisite one-year period.
The second factor was the addition, in 1974, of Government Code section 6008. The
legislature realized the requirements of section 6000 were severeJy limiting in an era in
which m,wspapers printed in one city may be distributed in territories covering much
larger areas, such as the Union Tribune or Los Angeles Times. To address the issue, the
1egislature enacted section 6008, which provides alternative requirements for newspapers
unable to meet the printing and publishing requirements of section 6000. In section 6008,
the onerous provision that the newspaper be printed and published in the city where it
seeks adjudication was replaced by a less burdensome requirement that the newspaper
maintain its principal office in the city of adjudication. However, other requirements were
increased. The table below compares the requirements of the two statutes.
Gov't Code S 6000 Reauirements Gov'! Code S 6008 Reauirements
. Bona fide subscription list of paying . Substantial distribution to paid
subscribers subscribers
. Printed and published at regular . One principal office of publication in
intervals in the city where the city seeking adjudication
publication is to be given . EstabHshed fOI the whole of a three-
. Established at least one year preceding year period
the date of the adj udication
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Councilmember Steve Castaneda
February 28, 2007
Page 5
The enacunent of section 6008 raised two additional areas of dispute with respect to
whether or not a newspaper qualifies as a newspaper of general circulation. The first
question is the meaning of tbe phrase "a substlUltial distribution to paid subscribers in the
area in whicb it is seeking adjudication." Medeiros v. South Coast Newspapers, 7 Cat.
App. 4th 982, 986 (1992). In Medeiros, the ratio of paid subscribers to inhabitants was
about 1.48 percent. Medeiros first argued this amOUnI should be incrcased to include
newsstand sales. The court rejected this argument, noting that the Legislature originally
considered language that required only "a substantial distribution in the area in which it is
sold or distributed" (Medeiros at 986), but later changed the phrase to "a substantia}
distribution to paid subscribers in the area in which it is seeking adjudication." Id. Based
on the pre-enactment legislative history, the court said "i t is evidem the legislature did
not intend to include newsstands in the substantial distribution requirement." !d. In
Medeiros, the court also determined that the relevant standard for determining
distribution was population rather than tile number of households. Final1y. the cout1
stated that, "(sJtanding alone, 1.48 percent is too small a number to be declared to be
substantia]," Medeiros at 986. The coun went on to say, however, that if al1 other papers
in the area had a similar percentage of population to paid subscribers, 1.48 percent migbt
be considered substantial. Id.
The final issue to be resolved by the courts waS whether a substantial distribution
requirement should be Tead into the language of section 6000, which, as enacted, only
requires a "bona fide subscription list of paying subscribers." This issue was raised by the
San Diego Transcript in In re San Diego Commerce, 40 Cal. App. 4th 1229 (1995). The
coun flatly rejected the Transcript's argument and stated:
[TJhere is no case authority whatsoever for the proposition
urged upon us by Transcript, that sections 6000 and 6008
must despite their differing language be read to contain the
same 'substantial distribution' requirement. What
Transcript truly requests is for this intermediate appellate
court to engage in judicial amendment of a legislative act,
because such an act is. in the view of Transcript, necessary
to achieve harmony with some underlying 'policy.' Such
jUdicial actions have been often criticized by appellate
courts themselves. We have no general power to rewrite
statutes to conform to some underlying 'policy.' As a rule,
there can be no intent in a statute not expressed in its
words; the intention of the Legislature must be detennincd
from the language of the statute.
San Diego Commerce at 1235, citing Woodland Joint Unified School Dist. v. Commission
Oil Professional Competence, 2 Cal. App. 4th 1429, 1451 (1992).
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Councilmember Steve Castaneda
Febroary 28, 2007
Page 6
La Prensa does not meet the requirements of either Government Code section 6000 Or
6008. It is not printed and published in Chula Vista as required by Section 6000. Nor was
it established before 1923, which would make La Prensa eligible for the exemption of
Section 6006. Finally, La Prensa does not have its one principal office in the City.
However, nothing prohibits La Prel1.Sa trom establishing itself in the City so thar it may
meet the requirements of section 6008 and seeking court approval as a newspaper of
general circulation for the City at a later date.
CONCLUSION
The courts have strictly construed the provisions of Government Code sections 6000 and
6008, and have declined to read any additional requirements into the specific language of
the statute. Given the courts' construction of the relevant statutory provisions, there is
currently only one newspaper iliat qualifies as a newspaper of general circulation for the
City of Chula Vista, thus no bid process is required under Charter section 313. However,
should La Prensa establish at a later date that it meets the requirements of 6008 the
provisions of Charter section 313 would apply. Therefore. we conclude the City must go
out to bid if La Prensa establishes it meets the requirements of Government Code
section 6008.
Sharon A. Marshall
Senior Assistant City Attorney
SAM:ccm
Attachment
cc; Cheryl Cox, Mayor
Suzanne Brooks, Senior Procurement Specialist, Finance Department
Susan Bigelow, City Clerk